Findings Of Fact Beverly Meadows was a tenant at the Lennox Court Apartments from 1975 until she left in August, 1980, some two months prior to the expiration of her lease. At the time of the incident giving rise to the charges here under consideration, Ms. Meadows occupied Apartment No. 54, a two-bedroom, two-bath unit. The lease provided that Ms. Meadows was the sole tenant. There are 81 units at Lennox Court Apartments. Earlier, Ms. Meadows had obtained permission for Carol Bumbar to share the lease of the apartment, and Ms. Bumbar lived in the apartment for three or four months before leaving to get a place of her own. Ms. Bumbar testified that the primary reason she moved was so that she could have her children with her. Another reason given was that people were coming to and going from Ms. Meadows' apartment all the time, and Ms. Bumbar wanted more privacy. In March, 1980, after the DETERMINATION had been made by Ms. Jean Grogg not to renew Ms. Meadows' lease when it expired in October, 1980, Apartment No. 54 was leased to Mr. and Mrs. Koski effective 1 November 1980 pursuant to Rental Application (R. Exhibit 2). Ms. Jean Grogg is the manager of the Lennox Court Apartments and has been in that position since October, 1978. After Ms. Bumbar moved out of Apartment No. 54, Ms. Grogg notified Ms. Meadows on August 20, 1979 (R. Exhibit 1), that she would not allow her to have any more roommates. Ms. Grogg had determined that, because of other tenants' complaints about visitors to Ms. Meadows' apartment and the condition in which Ms. Meadows kept the apartment, Ms. Meadows was not a desirable tenant and her lease would not be renewed when it expired in October, 1980. She communicated this information to Ms. Breitenfeld, who supervises several apartment complexes, including Lennox Court Apartments, owned by the same corporation. In June, 1980, Ms. Meadows requested permission from Ms. Grogg to amend the lease to allow her to take a roommate. Ms. Grogg denied this request because of her previous determination not to renew the lease upon its expiration. Ms. Grogg was advised neither the race nor sex of the putative roommate. Ms. Meadows then called Ms. Breitenfeld, the supervisor of Ms. Grogg, to get her permission to amend the lease to include a roommate. Ms. Meadows confessed to Ms. Breitenfeld that she had not been completely honest with Ms. Grogg but in truth the roommate she desired added to the lease was her fiance. Ms. Breitenfeld was aware that within a short time Ms. Meadows would be given the 60-day notice that the lease would not be renewed and told Ms. Meadows that when she and her fiance were married he could be added to the lease. Ms. Breitenfeld was never informed that Ms. Meadows' fiance was black. In August, 1980, the same date the 60-day notice of non-renewal was delivered to Ms. Meadows, she moved out of Apartment No. 54 at Lennox Court Apartments. Jackie Henry occupied a two-bedroom, two-bath apartment at Lennox Court Apartments for approximately three years until August, 1980, during which time she shared the apartment with several roommates. The last month she was there she was told she could have only one roommate. No evidence was presented that this apartment was ever rented to Jackie Henry as the sole occupant. Ms. Meadows testified that she had numerous black friends who worked with her and who visited her at her apartment. She also acknowledged that she had received a letter from Ms. Grogg advising her that neighbors had complained about noise and guests parking in other tenants' spaces following a party given by Ms. Meadows. Helen Betz, a black friend and working companion of Ms. Meadows, visited the latter's apartment many times and testified that sometimes people stared at her and Ms. Meadows as they walked to or from the apartment. Specifically, she recalled some workmen cleaning a vacant apartment who stared at them as they passed the apartment. The race of these workers was not disclosed. The majority of the residents at Lennox Court Apartments are elderly ladies. There are some apartments with tenants having different last names, and at least one of these apartments is, with the knowledge of the management, occupied by two unmarried persons of the opposite sex. There are currently no black tenants at Lennox Court Apartments. No evidence was presented that any applicant was denied a tenancy because of race.
The Issue The issues in this proceeding are whether the Respondent has violated provisions of the real estate licensing law as alleged in the Administrative Complaint, and, if so, what penalty should be imposed.
Findings Of Fact The Respondent is licensed by the Petitioner as a real estate broker. Respondent presently practices with her own company, known as Stephenson Real Estate Company. During the period of time in which the matters set out in the Administrative Complaint are alleged to have occurred, the Respondent practiced in a partnership known as Stephenson-Harmon Real Estate Company in Daytona Beach, Florida. Gay Marsh, together with two other individuals, owned a residential property located in Daytona Beach, Florida. During June, 1980, Marsh gave a listing to sell the property to Dot Harmon, a real estate broker who worked with the firm of Stephenson-Harmon. During October, 1980, the Respondent, who was Harmon's partner, located potential purchasers Louis C. and Rita L. Schiess. The Schiesses were interested in obtaining a lease and, secondarily, an option to purchase the property at the expiration of the lease period. Marsh was at the time residing at Stone Mountain, Georgia. The Respondent contacted Marsh by telephone and advised her of the Schiesses interest. Marsh indicated that she would be interested in a lease/option to purchase arrangement. The Respondent then contacted the Schiesses to develop specific terms to present to Marsh. On or about November 8, 1980, the Schiesses signed an option contract and rental agreement. On November 9, the Respondent reached Marsh by telephone and communicated the terms to her. While the terms were not totally satisfactory to Marsh, it appeared that the parties were close to having an agreement. After the conversation, Marsh wrote a letter to the Respondent itemizing various provisions that Marsh was concerned about having in the contract. Marsh testified at the hearing that the Respondent assured her that all of the moneys specified in the option agreement and the lease agreement had been deposited with the Respondent. Marsh testified that it was because of this assurance that she ultimately undertook the expense of traveling to Daytona Beach to perform any needed repairs on the house and to close on the transaction. Respondent had not received a check for all of the money specified in the contract, which would have included the first and last month's rental, a security deposits a pet deposit, and an option fee, all totaling approximately $3,000. Respondent had actually received a check for only $950 from the Schiesses as a deposit on the transaction. Later, on November 14, the Schiesses executed a promissory note for the $1,000 option. Marsh's assertion that the Respondent misrepresented the amount of money that had been deposited with her forms the basis for Count One of the Administrative Complaint filed by Petitioner. The evidence does not sustain a finding that the Respondent misrepresented the amount of money that had been deposited with her in her November 9, 1980, conversation with Marsh. The testimony of Gay Marsh to that effect has been specifically rejected. In the first place, Marsh's recollection of the November 9, 1980, conversation is somewhat unclear. Her best recollection appears to have been that the Respondent advised her that the Respondent had collected "all of the moneys." In view of the fact that the Respondent's recollection of the precise nature of the conversation was unclear, her testimony is not deemed credible. Furthermore, immediately following the conversation, Marsh took steps to carefully memorialize the terms of the potential agreement between her and the Schiesses in a letter to the Respondent. Although Marsh testified that having all of the money on deposit with the Respondent was crucial to her, it is not mentioned at any place in that letter, despite the fact that other provisions of the potential contracts were thoroughly discussed. At no time during negotiations which followed the November 9 conversation did Marsh seek any confirmation that "all of the moneys had been deposited with Respondent. When she learned in December, 1980, that all of the moneys had not been deposited, she did not immediately assert that Respondent had made any misrepresentations. Marsh was a contentious and difficult party to these negotiations. She had difficulty getting along with the Schiesses, with Respondent, and with Respondent's partner. All of these factors, together with the demeanor of Marsh as a witness at the hearing, lead to the conclusion that her testimony regarding alleged misrepresentations on the part of the Respondent be rejected. The witness Maxwell testified at the hearing as to conversations that he had had with Respondent about the alleged misrepresentations during the November 9, 1980,telephone conversation. Maxwell did not record or otherwise memorialize his conversations with Respondent. His memory as to what the Respondent told him was not clear; and insofar as his testimony could be interpreted to indicate that Respondent made any misrepresentation to Marsh, it cannot be credited. Maxwell conceded that there was a substantial prospect that Marsh simply misunderstood what Respondent told her. The transaction between Marsh and the Schiesses concluded unsuccessfully. Marsh traveled to Daytona Beach from Georgia during December, 1980. Her conversations with the Respondent were unpleasant, and the Respondent bowed out of the transaction. During negotiations that occurred directly between Marsh and the Schiesses, Marsh continually insisted upon new provisions to be inserted into the contract. The Schiesses were permitted to move into the house despite the fact that the contract documents had not been finally executed. They remained for only approximately two months, whereupon they moved out and negotiations ended in a manner that was unsatisfactory to all parties. It is alleged in the Administrative Complaint filed by Petitioner that Respondent disbursed fees that had been deposited with her by the Schiesses without Marsh's authorization. This allegation is not supported by the evidence. Marsh's attorney authorized the Respondent to disburse the funds. Marsh's attorney had been given authority by Marsh to make that authorization.
Findings Of Fact Petitioner was employed by Respondent as a correction officer for the 16-month period between March, 1981 and July, 1982. She was assigned to the St. Johns County Jail, where her duties included booking and releasing both male and female inmates, taking mug shots, obtaining fingerprints, delivering food and mail, and providing general security. Petitioner satisfactorily completed a one-year probationary period and achieved permanent status. She became aware of her pregnancy in March, 1982, and informed her supervisor of this fact. 1/ She was initially told by her supervisor to report "downtown" for reassignment. However, the officer in charge of that department knew nothing of the proposed change in assignment and sent Petitioner back to the jail. Petitioner then resumed her correctional duties but was assigned exclusively to the booking desk based on her pregnancy. Around May, 1982, Petitioner was reassigned within the jail to the canteen, where her duties were clerical rather than correctional. On May 28, 1982, the jail administrator wrote to Petitioner's physician inquiring as to whether Petitioner could continue to perform correctional duties based on her physical ability and safety considerations. The physician's reply established that her physical ability would permit her to continue working until the date of her confinement, which he anticipated would occur about October 14, 1982. The physician declined to evaluate her condition in terms of job safety. In mid-July, Petitioner was told by her immediate supervisor, Sgt. Threet, that she should take maternity leave. Petitioner declined in the belief that she had a choice in the matter and that she was able to continue working. However, her unwillingness to take leave was not communicated to Captain Janson, who advised her by letter that he was placing her on leave as agreed. A meeting was held to discuss the proposed leave, but apparently the misunderstanding continued. Petitioner reported for work on July 21, 1982 and was directed to leave by her former supervisor, who advised Petitioner that she was no longer on the payroll. Petitioner's apparent termination on July 21, 1982 was confirmed by a letter from the St. Johns County Sheriff dated July 30, 1982 (Petitioner's Exhibit 2). The Sheriff's letter and other after-the-fact statements of subordinate officials indicated their belief that Petitioner and her fetus were in "obvious jeopardy" (Petitioner's Exhibit 2), so long as she continued to have contact with jail inmates. Additional reasons given for her removal were that she could not backup her commands to inmates because of her physical condition, and that she was becoming too large physically to work behind the booking desk (Respondent's Exhibit 1). The lack of any policy with respect to pregnancy and the confusion in this case were evident in the two attempted reassignments of Petitioner prior to her discharge and referral of the matter, at one point, to Petitioner's physician. Both Petitioner and her immediate supervisor, Sgt. (now Lieutenant) Threet are women of small physical stature. They are essentially unarmed while on duty and must rely on outside help if there is a major disturbance within the jail. Lieutenant Threet concedes that she would not be able to overpower a strong male prisoner if confronted by one. Therefore, the physical demands of the correctional officer position must be considered limited. There was no medical evidence presented that indicated Petitioner was unable to perform her assigned duties at the time of her discharge. She was aware of the physical risk to herself and fetus (although the degree of such risk was not established) and accepted this responsibility as a condition of her continued employment. The argument regarding Petitioner's alleged physical difficulty at the booking desk is rejected as pretextual and was not pursued at the hearing. Her alleged inability to backup commands to inmates due to her condition is likewise rejected in that she, as well as her female supervisor, were not at anytime capable of physically enforcing their commands with respect to the large and stronger male prisoners.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order directing that Petitioner be reinstated by Respondent. DONE and ENTERED this 31st day of December, 1984, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1984.
Findings Of Fact The Respondent, Lori Engelleiter, advertised in the Island Trader, a local shopper publication, and in the newspaper, holding herself out to provide regular care for the elderly, the handicapped and the retarded in her private home for unspecified monthly rates. In response to these advertisements, at least two individuals were taken into the Respondent's home for care, as arranged by relatives of these clients. The Respondent provided regular personal care for not more than three residents at a time. This personal care consisted of housing, meals, help with bathing, and with dressing and changing clothes. In the cases of the two clients of the Respondent whose stays at the facility were detailed at the hearing, the personal care was provided by the Respondent for a period of three weeks in one instance, and for more than four weeks in the other instance.
Recommendation Based upon the foregoing Findings of Fact and conclusions of Law, it is RECOMMENDED that the Department enter a Final Order finding that the Respondent is guilty of operating an Adult congregate Living Facility without a license, and imposing a fine of $500 as penalty therefor. THIS RECOMMENDED ORDER entered this 12 day of April, 1984. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of April, 1984. COPIES FURNISHED: Douglas E. Whitney, Esquire 400 East Robinson Street Suite 911 Orlando, Florida 32801 Lori Engelleiter Post Office Box 24 Melbourne Beach, Florida 32951 Alicia Jacobs, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1321 Winewood Boulevard Tallahassee, Florida 32301
The Issue Whether Respondent discriminated against Petitioner on the basis of marital status or sex.
Findings Of Fact In August, 1992, two special learning disabilities (SLD) teaching positions were available at Key Largo Elementary School. Petitioner, Steve J. Longariello (Longariello), a single male, applied for a SLD position with the Monroe County School Board. At the time he applied, Longariello was certified to teach a SLD class. In addition to Longariello, twelve other candidates, including five men, applied for the two available SLD teaching positions at Key Largo Elementary School. On August 7, 1992, Longariello interviewed for a SLD position at Key Largo Elementary School. The interview was conducted by the principal of the school, Frances McCormick-St. James, and Annette Hall. At the time of the interview Ms. McCormick-St. James was unmarried. The interview lasted approximately 20 to 25 minutes. No questions were asked concerning Longariello's marital status, and Longariello did not volunteer any information concerning his marital status. The application did not indicate Longariello's marital status. Longariello has no information available to him to make him believe that either Ms. McCormick-St. James or Ms. Hall was aware of his marital status at the time of the interview. No evidence has been presented to show that either Ms. McCormick-St. James or Ms. Hall knew that Longariello was single. Longariello recalls that during the interview that Ms. McCormick-St. James had two statues on her desk with comments concerning men on the statues. He does not recall what the comments were or what the statues looked like. Neither Ms. Hall nor Ms. McCormick-St. James asked him any questions which he considered offensive based on gender. A couple of days after the interview, Longariello called the school and was told that the position had been filled. The position was filled by a married female, Katherine Walker. The parties have stipulated that Ms. Walker was as qualified as Longariello. Gregory Kickasola, a single male, submitted an application dated September 4, 1992 to Key Largo Elementary School. He was hired for one of the SLD teaching positions for which Longariello applied. During the 1992-1993 school year, Longariello called the Monroe County School Board to see if any positions were available. He considered his telephoning to be equivalent to applying for whatever positions were available at the time. In November, 1993, Longariello was offered a teaching position by the Monroe County School Board at Marathon High School. It was a seven-month position. Longariello declined the position because he felt that it would cost him too much money to take the position and not be assured of being rehired the following year. There were no guarantees for a rehire for the next year for any position for which Longariello could have applied. Longariello did not renew his teaching certificate with the State of Florida in October, 1993, and presently does not have a teaching certificate. For the 1991-1992 school year, Monroe County School Board hired 30 single teachers and 33 married teachers. Of the single teachers, nine were male. Of the married teachers, 5 were male. During the same school year, six single teachers and five married teachers were hired at Key Largo Elementary. Two of the single teachers were male and two of the married teachers were male. For the 1992-1993 school year, Monroe County School Board hired 45 single teachers and 55 married teachers. Fourteen of the single teachers were male and nine of the married teachers were male. During the same school year, six single teachers and twelve married teachers were hired at Key Largo Elementary. One of the single teachers was male and one of the married teachers was male. For the 1993-1994 school year, Monroe County School Board hired 55 single teachers and 49 married teachers. Twenty-five of the single teachers were male and 7 of the married teachers were male. During the same school year, 8 single teachers and 6 married teachers were hired at Key Largo Elementary. Six of the single teachers were male and none of the married teachers were male. At the beginning of the 92-93 school year, the total number of instructional staff in Florida public schools consisted of 92,402 females and 26,467 males. Thus, 22.27 percent of the total instructional staff were male. At the beginning of the 93-94 school year, the total number of instructional staff in Florida public schools (excluding Monroe County) 1/ consisted of 96,010 females and 27,512 males. Thus, 22.27 percent of the total instructional staff, excluding Monroe County, were male. At the beginning of the 94-95 school year, the total number of instructional staff in Florida public schools consisted of 100,346 females and 28,883 males. Thus, 22.35 percent of the total instructional staff were male. On July 8, 1993, Longariello filed a complaint with the Florida Commission on Human Relations, alleging that Respondent had discriminated against him on the basis of sex and marital status. On August 8, 1993, Longariello filed complaint with the U.S. Equal Employment Opportunity Commission (EEOC), alleging Respondent discriminated against him based on sex and marital status. On May 23, 1995, the EEOC issued a Letter of Determination, stating that the investigation failed to reveal evidence which would support a case of discrimination based either on sex or marital status. Longariello was advised that he could file suit against the Respondent in Federal District Court within 90 days of the receipt of the Letter of Determination. On August 4, 1995, Longariello wrote to the Commission and requested an administrative hearing on his complaint. In his letter to the Commission, Longariello stated: To date, I have not received a registered letter that would indicate a determination has been made. From what I understand of Title XLIV, Civil Rights, Chapter 760, I can proceed in one of two ways: (1) Bring Civil Action, or (2) Request an Administrative Hearing under Section 120.57. * * * Because a EEOC investigation has found no violation of T. VII, the main focus of this hearing should be MARITAL STATUS DISCRIMINATION. This is because marital status is not a protected class under T. VII. If I decide to proceed with my sex discrimination claims in Federal District Court, it may not be necessary to pursue sex disc. at the State level. On August 17, 1995, Longariello filed a civil action in the United States District Court for the Southern District of Florida against Respondents alleging sex discrimination based on the same facts which are the subject of this administrative proceeding. Steve J. Longariello v. School Board of Monroe County, Florida, Monroe County Public Schools, Case No. 95-10055.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing Longariello's claims for discrimination based on sex and marital status against Monroe County Public Schools, Florida. DONE AND ENTERED this 23rd day of January, 1997, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January, 1997.
The Issue Is the Petitioner qualified for licensure?
Findings Of Fact On October 4, 1989, Petitioner filed his application for licensure as a real estate salesman. Question #7 of the application asked whether the applicant (Petitioner) had ever been convicted of a crime, found guilty or entered a plea of guilty or nolo contendere even if adjudication was withheld (Respondent's Composite Exhibit No. 1). The Petitioner admitted to having been arrested on July 3, 1984 and to pleading nolo contendere on October 17, 1985 to committing a sex offense against a child and the commission of lewd and lascivious acts. The Petitioner was placed on probation for ten (10) years for the first offense and was sentenced to three years imprisonment for the second offense with thirty-five (35) days credited for time served. A condition of his probation is that he cannot reside or stay overnight with a child under the age of 18. At the formal hearing in this case, Petitioner testified on his own behalf and admitted that he had molested his oldest daughter, age 11, and pleaded nolo contendere to said offense in 1984 and three (3) months later molested both his oldest daughter, then age 12, and his youngest daughter, then age 9, and pleaded guilty to said offenses. Petitioner further testified that the initial offense had been committed over a period of approximately two weeks and that the second offense had been committed over a period of approximately two months. The offenses occurred while he was undergoing rehabilitation therapy for the traumatic amputation of his leg. Since his release from jail, Petitioner has received treatment for his behavior at the Florida Mental Health Institute, North Florida Evaluation and Treatment Center and Community Behavioral Services. Petitioner's brother testified concerning his brother's life. The Petitioner had been an Eagle Scout; had been a scoutmaster; had been a member of the Navy Reserve and had had no problems prior to loosing his leg in an accident. Since his release from jail, the Petitioner has provided child support to his ex-wife and daughters. Petitioner had resided with and been employed by his brother until his brother adopted a child. The condition of the Petitioner's probation that the Petitioner can not reside with a child under the age of 18 required the Petitioner to change his residence and employment with his brother. He was employed by Kelly Temporary Services at the time of hearing and was working in a bank in customer service. The Petitioner has remained in therapy as required by his probation. The Petitioner has been in the presence of children when other adults were present since his release from jail and the Petitioner's behavior was exemplary. The Petitioner's brother opined that the Petitioner had "rehabilitated himself," and pointed out that very severe consequences would result to Petitioner for a third offense. The Petitioner admitted that the offenses had occurred in isolated settings when no other adults were present.
Recommendation Based on the foregoing, it is RECOMMENDED that the Petitioner's application to take the state examination for licensure as a real estate salesman be denied. DONE AND ENTERED this 2nd day of October, 1990, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-1844 The Petitioner wrote a letter to the Hearing Officer, which was read and considered. Respondent's Proposed Findings of Fact 1-6. Adopted. 7. Rejected, as irrelevant. COPIES FURNISHED: Joselyn M. Price, Esquire Department of Legal Affairs 400 West Robinson Street, Suite 212 Orlando, FL 32801 Grady William Aplin, Jr. 905 South Kings Avenue Brandon, FL 33511 Darlene F. Keller, Director Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, FL 32802 Kenneth E. Easley, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue The issues in this case are whether Respondent violated Subsections 491.009(1)(r) and 491.009(1)(u), Florida Statutes (2003),1 and, if so, what discipline should be imposed.
Findings Of Fact At all times material to this proceeding, Dr. Brack was licensed as a marriage and family therapist, License No. MT 1690, and as a mental health counselor, License No. MH 5526. In 2000, Dr. Brack was hired as a marriage counselor for J.S. and his wife M.M.S. During this time, Dr. Brack also served as an individual counselor for M.M.S. At times during the marriage counseling, J.S. met with Dr. Brack without M.M.S. being present. J.S. discontinued the joint marriage counseling in 2001. Dr. Brack continued as an individual counselor for M.M.S. and M.S., the son of J.S. and M.M.S. Dr. Brack continued to counsel with M.S. until 2003. J.S. met with Dr. Brack, M.M.S., and M.S. on September 24, 2003, to discuss issues involving M.S. J.S. had to leave the session early to take M.S. to another appointment. J.S. and M.M.S. were splitting the cost of counseling for M.S. When J.S. left the meeting, M.M.S. was still in session with Dr. Brack. J.S. thought that M.M.S. would pay Dr. Brack, and he would reimburse M.M.S. for his share. M.M.S. did not pay Dr. Brack on September 24, 2003. On October 1, 2003, Dr. Brack sent an e-mail to J.S., requesting that he pay for the session on September 24, 2003. The e-mail contained many inappropriate remarks such as discussing her fee arrangement with another counselor and discussing a broken water pipe in her office and the problems she was having with the insurance companies about the responsibility for the damages. Dr. Brack made inappropriate statements such as, “I realize that you are not working right now, but I know that you do have a sizeable savings account, so I would appreciate your bringing me this payment.” She also bemoaned her having to pay for the water damage while the insurance companies argued and stated: “Needless to say, it is not a good time for me to carry you, as well.” Dr. Brack’s diatribe was unnecessary and unprofessional. The proper course of conduct under the circumstances simply would be to send J.S. a statement for the counseling session. J.S. and M.M.S. were unable to settle their differences and were divorced some time prior to March 2004. M.M.S. was awarded primary custody of M.S. An issue arose concerning whether M.M.S. should be allowed to take M.S. and move out of Florida. Litigation ensued on that issue. Dr. Brack wrote a letter to M.M.S.’s attorney, John Lonergan, dated March 11, 2004. In the letter, Dr. Brack revealed information concerning J.S. that had been communicated to her during the marriage counseling sessions. Such communications include statements made by J.S. to Dr. Brack during the counseling sessions, disclosure of mental health diagnoses for J.S., disclosure of mental health treatment for J.S., and disclosure of suicidal ideations by J.S. In the March 11, 2004, letter, Dr. Brack wrote that J.S. had been “trying a myriad of psychotropic medications in extremely high doses and combinations”; when, in fact, J.S. had been on only one medication in a low dosage for about six months. Dr. Brack was aware that J.S. was protecting his privacy relating to his psychiatric treatments when she wrote the March 11, 2004, letter. She stated in the letter that she had requested J.S. to sign a release form to allow her access to his psychiatric records, but J.S. had steadfastly refused to sign a release. J.S. was not copied with the letter by Dr. Brack; he received a copy of the letter from an attorney a couple of weeks after the letter had been written. An attorney representing M.M.S. scheduled Dr. Brack’s deposition for May 13, 2004. When J.S. learned that Dr. Brack was going to be deposed, he wrote a letter dated May 12, 2004, to Dr. Brack and advised her that he was asserting his psychotherapist-patient privilege as well as for M.S. and was directing her not to disclose any information during the deposition relating to the scope of their professional relationship. Additionally, he advised Dr. Brack that he felt that she had violated his trust and confidence in writing the March 11, 2004, letter to Mr. Lonergan. Dr. Brack appeared for her deposition as scheduled on May 13, 2004. At the time of the deposition, Dr. Brack knew that J.S. was asserting psychotherapist-patient confidentiality for himself and for M.S. During the deposition, Dr. Brack acknowledged that she had a psychotherapist-patient relationship with J.S. At the deposition, Dr. Brack indicated that she was not sure which statutes governed her professional licensure. During the deposition, Dr. Brack stated that she was not sure she was asserting the psychotherapist-patient privilege, but then asserted a partial privilege. An attorney at the deposition conducted a voir dire of Dr. Brack regarding the nature and extent of the privilege. Dr. Brack stated that she was acting under a statutory wavier when there is a clear and immediate probability of physical harm to the patient or client. She stated, however, that she believed that there was an immediate potential and then that there was a probability of physical harm. Dr. Brack was unable to articulate at the deposition her basis for making such a determination and could not tell for how long the probability existed. Dr. Brack indicated in the deposition that she had advised M.M.S. and J.S. about the probability of physical harm to M.S. by J.S., but that she had not informed law enforcement or the Department of Children and Family Services. The proper course of action for a similarly-situated professional when there is an immediate probability of physical harm would be to call the abuse hotline, report the danger to the Department of Children and Family Services or advise a person in a position of authority who could do something to prevent such action from occurring. It was not proper to report potential harm to J.S., who was the person whom she felt would inflict the harm. Near the end of the deposition, Dr. Brack asserted the psychotherapist-patient privilege. At no time did J.S. sign a release allowing Dr. Brack to reveal any communications between J.S. and Dr. Brack that occurred during the marriage counseling sessions except a partial waiver to release records to Dr. Robert Silver, a court- appointed evaluator. At no time did J.S. give Dr. Brack permission to disclose communications made during the marriage counseling sessions to anyone other than to Dr. Silver.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Dr. Brack violated Subsection 491.009(1)(u), Florida Statutes, as alleged in Counts One and Two of the Administrative Complaint and Subsection 491.009(1)(r), Florida Statutes, as alleged in Counts Three and Four of the Administrative Complaint; issuing a reprimand for all four violations; imposing an administrative fine of $1,000 for the violation in Count One; imposing an administrative fine of $1,000 for the violation in Count Two; imposing an administrative fine of $500 for the violation in Count Three; imposing an administrative fine of $500 for the violation in Count Four; and requiring Dr. Brack to complete 40 hours of continuing education in courses on the laws, rules, and ethics applicable to marriage and family therapy and mental health counseling in a manner to be determined by the Board. DONE AND ENTERED this 17th day of June, 2009, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 2009.
Findings Of Fact Petitioners, Douglas Lavern Adams, Edwin Paul, Stanley Blanding, Carl B. Cribbs, Efron Yero, and James M. Cook are all incarcerated in the State of Florida at Respondent's facility, the Union Correctional Institution located at Raiford, Florida. On November 15, 1984, the Department of Corrections forwarded to the Bureau of the Administrative Code for publishing in the next available issue of the Florida Administrative Weekly, its proposed Rule 33-5. The proposed rule in question was published in Volume 10, No. 46 on November 21, 1984. The stated purpose and effect of the proposed rule was to clarify and revise policies and procedures relating to visitation with inmates. The proposed rule purported to make certain changes to pre-existing Rule 33-5 as outlined in the proposal which, among other things, allowed superintendents to make exceptions to any provision of this rule on an individual case by case basis, based on the best interests of the inmate, the security and welfare of the department, or both with the qualification that the exception could not be more restrictive than the provisions of the rules and with the further requirement that all visiting policies promulgated by the superintendent shall be subject to approval by the Secretary of the department. Petitioners contend that the proposed changes severely limit their prior existing visiting rights. Specifically, Petitioners' contentions include: Rule 33-5.01 is without legislative authority in that the Secretary has no authority from the legislature to delegate policy making authority to superintendents; Rule 33-5.04 is an invalid rule for the same reason and because it deprives hospital inmates of family visits in an arbitrary and capricious manner, without a valid penological objective, and in violation of both equal protection clauses of the State and Federal Constitutions and is fatally vague and invalid in that by stating, "any other special status" it fails to specify what status prisoners will be prohibited from visitation; Rule 33-5.07(5) constitutes an invalid delegation of legislative authority to an employee; Rule 33-5.08(2) is arbitrary, capricious, and without any known penological objective, constitutes an abuse of discretion, and is unreasonable in that it is without a rational basis for the potential reduction of visiting days; Rule 33-5.08(3) is discriminatory on its face, is fatally vague, and insufficient in specificity to inform Petitioners what circumstances will be considered; Rule 33-5.08(4) is without a rational basis in fact and is fatally vague; Rule 33-5.10(c) is an unconstitutional rule in that by authorizing unwarranted searches and invasions of privacy of visitors, this would discourage visitation and thereby deprive Petitioners of visits; Rule 33-5.08(12)(c) is fatally vague and overbroad and discriminates against female visitors in an arbitrary and capricious manner by permitting their exclusion if they are "not appropriately clothed or are dressed in revealing attire . . . and other like attire"; Rule 33-5.08(14) and (15) constitute an abuse of discretion and are discriminatory in an arbitrary and capricious manner in that they refer without defining or explaining "security" reasons for allowing non-contact visits; (j) Rule 33-5.04 and 33-5.08(2) render the proposed rule ambiguous and vague because prisoners will not be able to ascertain if they are entitled to visits and the rules cannot be uniformly applied on a just and rational basis; (k) that Respondent has failed to provide adequate notice of the proposed rule to those inmates in administrative, disciplinary, and close management status. The proposed changes to the rules came about after Respondent conducted a survey of the existing visitation policies of all institutions within its system. This review indicated a need for a statewide set of standards for visitations while at the same time allowing the superintendents of the various institutions the flexibility to tailor standards at the individual institutions to local needs and the special needs of the inmates. The survey showed a need for some flexibility within the rules to accommodate the uniqueness of the individual facilities and the special needs inherent therein while at the same time addressing the overall needs constant throughout the system such as security, inmate health and welfare, and safety of both staff and inmate population. Primary among the concerns considered by the Department was the security aspect. The need to control contraband and to maintain order and discipline within the confines of any given facility is obvious. Without question a valid concern of the staff is the ability to control who and what goes into the facility. The superintendent has the inherent power to interdict the introduction of drugs, alcohol, weapons and similar contraband into a facility. He or she also has the responsibility to insure against the potential for disturbance caused by obviously inappropriate clothing worn by staff visitors to a sexually segregated institution. James M. Cook is an inmate at the Union Correctional Institution who has received special visits of the type to be governed under proposed Rule 33- 5.04 in the past. On those occasions he had to establish for his proposed visitor the classification the visitor would fall under, such as distance from the facility travel led or other criteria. In his opinion the proposed rule is somewhat vague. He contends it does not give specifics as to mileage, clothing to be worn, etc., in detail adequate for the proposed visitor to know what is required. He understands from a conversation with his classification officer that the distance requirement to be applied under the new rule is 400 miles but this criteria is not specifically stated in the proposed rule nor can it be determined from reading the rule. As to female visitors, he contends that that portion of the proposed rule which provides for appropriate clothing is insufficient in detail to insure the visitors will be properly dressed for the visit. It has been his experience in the past that if a female visitor is improperly dressed, as determined by the institution's personnel, the guards require her to wear a shapeless smock. Under the terms of the new rule, Cook said, he is required to inform his visitor what can and cannot be worn, but because the rule is devoid of detail, it is difficult for him to do this. Proposed Rule 33-5.06(3) does not, as Cook asserts, require the inmate to inform the visitor in detail of the particulars of the visiting program only the basics, such as hours, days, and, to be sure, the need for non-provocative apparel. The question on the distance requirements for special visits is also of concern to inmate Cribbs whose mother lives in Tampa, a 350 mile round trip from this facility. Cribbs contends the proposed-rule has no specifics in it as to mileage for special visitors. In the past, his mother, coming from Tampa, has been able to visit on both Saturday and Sunday and because of the distance, has made a two day visit out of the trip. The new rule, according to Cribbs, leaves everything up to the superintendent regarding visiting privileges and depending upon the determination of that officer, his mother may be forced to come this long distance to see him only on one day of the weekend. Under the current policy, inmates are allowed visitors on both Saturday and Sunday and the new rule, he feels, will change this benefit to allow visits normally only once per weekend. Cribbs is also concerned about the dress requirements of the new rule. He is concerned with the term "like attire" which he feels makes it difficult for him to tell his female visitors what to wear. Petitioner, Stanley Blending, has also had visitors on both days of the weekend in the past. He had a need for this benefit because his grandmother came from Canada for a visit once a year and, in addition, his son comes up to visit from time to time and the two day visit is required for him to talk with the young man regarding family problems. At UCI he currently gets two days of visits and, in his opinion, these two day visits have had a beneficial, rehabilitative effect. As in the case of Cribbs, Blanding's family comes from Tampa and that distance makes it necessary for them to have a two day visit. He is concerned and believes that the proposed rule will limit visits to one day per weekend which, in his opinion, would severely limit the amount of visitation he would receive. He is also concerned, about the proposed rule regarding appropriate dress for female visitors. The proposed rule says nothing about the institution providing a smock for inappropriately dressed females as has been done in the past. Combining the two changes, if his visits were reduced to one day or his female visitors were barred because of "improper" clothing, either situation would have an adverse effect on him. The current rule does not provide what is appropriate clothing and under the terms of the new rule, he would have a difficult time explaining to his female visitors what "appropriate" clothing is. Inmate Yero was in disciplinary confinement in December, 1984 and then placed under investigation. While he was in that status from October 26, 1984 through early January, 1985, he did not get to see nor did he ever receive notice of the proposed rule. Prior to October, 1984, he was allowed visitors from one to two hours. This was the rule for prisoner in disciplinary confinement. The new rule would allow the superintendent to restrict visitors to prisoners in Yero's status. The new rule adds the word "infirmaries" to the list of special status inmates. He signed the Petition herein with only limited knowledge of its contents. Inmate Paul is presently a hospital inmate and has been intermittently since 1982. He is housed in the hospital because of a disability which confines him to a wheel chair not because of any contagious or infectious disease. He understands the new rule to state that since he is in the hospital, he could be denied visitors even though he is not a patient but a special housing prisoner who is considered to be a regular inmate. He was advised that when his sister from New York called to arrange a visit with him, she was told that because he was in the hospital, he could have only a one hour visit with her. The new rule could prohibit him from having visitors at all, he says, and leaves too much discretion with the superintendent. The one hour rule which applies to inmates in the hospital has had an adverse effect on him since he has been deprived of visits from his sister. He and his sister are orphans, he says, who have just been recently reunited after a long separation. He contends that the new rule puts too much control in the hands of the superintendent. It is too vague and gives the superintendent authorization to make decisions which he should not have. The propriety of placing control, the right to make decisions, and discretion in the hands of the superintendent is clear. Without question, the superintendent is the individual most qualified to make those decisions and to exercise those functions. Adams' mother is old. Because of this and because she cannot walk far, the past changes in parking and entry procedures have cut down on her visits to him. Because of this, he is not likely to be affected by the potential for a change to one day visits. However, as to the dress rule, he would have difficulty in telling his family what they could or could not wear based on the descriptions or lack thereof in the proposed rule. During the four years he has been in confinement, he has found it difficult to know or determine who is going to do what at any given time. His mother has told him that she would like to visit him but doesn't want to go through all the difficulties she has to encounter when she does visit. She states to him that the metal in her bra sets off the metal detector utilized to screen visitors and as a result, she wears a tank top on her visits which would be prohibited by the new rules. He considers this to be deleterious to him and his welfare and he contends that the new rule will destroy any uniformity among the 79 or so different facilities within the DOC. There is no evidence that the sole alternative to a metal braced bra is a tank top. Numerous other modes of dress are available to women of all ages, sizes, and shapes. According to Harry Singletary, Assistant Secretary of the Department of Corrections, the Department is presently reviewing all rules and policy and procedure directives in an effort to do away with the latter and make all controlling directives for the Department in the form of Rules. The intent is to promulgate standards for statewide application to meet the needs of the families of the inmates, the inmates, and the institutions. Mr. Singletary contends that the majority of changes set out in the proposed rules make them more liberal for the inmate or increase security for the institution. Both of these goals are worthy and supportable. It was the intent of the drafters of the rule to standardize procedures so that visitation would be made easier and safer and to increase uniformity among the institutions so that prisoners moving from one institution to another could know what to expect. It is the Department's position that a rule should not create surprises for the inmates and should liberalize and simplify procedures for them as much as possible. As to proposed Rule 33-5.01, the reason for the new language was to give the Superintendent the discretion to provide more visitation for the inmates and their families and to deal with special needs of the inmates or the institution. The change here is to liberalize - not penalize. The terms of the proposed rule provide that Superintendents' interpretations cannot be more strict than the terms of the rule and it in essence legitimizes superintendents being more liberal than the rule calls for. Based on the population and size of the UCI visitor park, notwithstanding the concerns of Mr. Adams that the Legislature and recent court decisions will have the effect of significantly reducing the population at UCI, there should he no change in visitor policy as it exists now at this institution. As a matter of fact, if the population decreases, there would be less pressure or reason to reduce the visit days for each inmate to make more time available for others. The fact that some language is less than specific (i.e., 6 hours instead of 9 am to 3 pm) reflects an intention on the part of the drafters to give the superintendent latitude to tailor local policy to the needs of the inmates and his institution. It is recognized that there may be some abuses by superintendents, but if this should occur, it would be the exception rather than the rule and there are adequate remedies existing in the DOC rules through grievance procedures to rectify any such abuse. With regard to proposed Rule 33-5.04, dealing with special status inmates, the change here proposed adds only the word "infirmaries." The existing rule was changed only to describe all types of facilities. The rule originally was designed to prevent the spread of disease incident to the closeness of prison populations. However, it is Mr. Singletary's confirmed opinion that ambulatory or non-infectious patient- inmates, such as Mr. Paul, one of the Petitioners here, would be allowed visitors in the visitor park the same as any other inmate, on regular hours. Proposed Rule 33-5.07(5) is a new offering which gives the Superintendent authority to act to promote discipline but provides adequate safeguards to prevent abuse. Proposed Rule 33- 5.08(3) is also new and it gives the inmates the opportunity to tell the superintendent what they need and provides for extra visiting time when justified. It also gives specific factors that inmates are to use to justify extra visiting time. It was intended to promote uniformity. Proposed Rule 33-5.08(10) dealing with searches, is designed to provide for a method to prevent the introduction of contraband into the institution. It is for the security of the institution and if reasonable, should provide no problems. There are presently no dress codes applicable to visitors coming into UCI or any other institution. Proposed Rule 33- 5.08(1)(c) applies to both men and women and is based on the need for security in the institution. The intent of the agency was to limit the opportunity for rude, suggestive, or untoward comments by inmates which could give offense to the resident inmate relative of the visitor to whom the comments are directed and which could incite fights or other violence. Proposed Rules 33-5.08(14) and (15) both exist in the present rule. Subparagraph 14 deals with people in protective custody and death row inmates as well as violent inmates. Subparagraph 15 deals with those instances where contact visits might jeopardize security. Those inmates in normal status would not be separated. The rules are based on the need to maintain security and prevent the passing of weapons, the spread of disease, or inappropriate conduct as is periodically demonstrated by inmates and visitors. The machinery designed by the agency to deal with those instances envisioned by the rule where a Superintendent of a particular institution might want to impose a standard stricter than that encompassed in the rule, requires that superintendent to submit his proposal to the Secretary of DOC along with justification and documentation indicating a need for a stricter standard. It is also envisioned that prisoners requesting a transfer from one institution to another write in advance to the new institution to get the local policy regarding a particular area or, wait to be briefed as to local policy during the incoming orientation on arrival. Just as the institutional superintendent must justify imposing a stricter standard than called for in the rule, it is, as well, the responsibility of the inmate who request extra visiting time, to present factors justifying the extension, the grant or denial of which is within the prerogative of the superintendent. Admittedly, while the rule does not define specific criteria for the superintendent to use in making his decision, it will be based on the reasonableness of the request and the sufficiency of the reasons submitted by the inmate. In short, the inmate must make his case and is not limited as to the factors he may use to show the need for extra time or for the change in location. The decision is within the discretion of the superintendent and is similar to other areas such as release, privileges, and the like in which the superintendent has been held capable of legitimately utilizing his discretion.
The Issue Whether Rules 33-3.005(2), (7) and (11), 33-3.0051, and 33-5.006(8), Florida Administrative Code, constitute an invalid exercise of delegated authority?
Findings Of Fact The Petitioner and the Intervenor; Standing. The Petitioner, W. Gerry Hargrove, is an inmate in the custody of the Respondent, the Department of Corrections. At all times relevant to this proceeding, the Petitioner was subject to the rules of the Respondent. At all times relevant to this proceeding, the Petitioner's marital status was single. At all times relevant to this proceeding, the Intervenor, Ann Hintenlang, was a married woman. The Intervenor is not related to the Petitioner. The Petitioner and the Intervenor have attempted to get approval for the Intervenor to visit the Petitioner. The Respondent has refused to approve the Intervenor as a visitor of the Petitioner because she is a married woman unrelated to the Petitioner. The Respondent's rejection of the Intervenor as a visitor is based upon the Respondent's interpretation of Rule 33-5.006(8), Florida Administrative Code. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent adopt rules governing the administration of the correctional system in Florida and the operation of the Respondent. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted governing mail, visiting hours and privileges and all other aspects of the operation of the prison system in Florida. Rule 33-5.006(8), Florida Administrative Code. Section 944.23, Florida Statutes, provides, in pertinent part: The following persons shall be authorized to visit at their pleasure all state correctional institutions: The Governor, all Cabinet members, members of the Legislature, judges of state courts, state attorneys, public defenders, and authorized representatives of the commission. No other person not otherwise authorized by law shall be permitted to enter a state correctional institution except under such regulations as the department may prescribe. [Emphasis added]. Pursuant to the authority of Sections 944.09 and 944.23, Florida Statutes, the Respondent has adopted Chapter 33-5, Florida Administrative Code, titled "Visitors." Rule 33-5.006(1), Florida Administrative Code, provides, in pertinent part, the following: Upon being committed to the custody of the Department, each inmate shall be given the opportunity to submit a list of persons from whom he wishes to receive visits. The initial list . . . shall be limited to members of the inmate's immediate family. Once the inmate has been assigned to a permanent institution, additional relatives and friends, business associates and others may be considered, but only after a criminal history background inquiry has been made. . . . Rule 33-5.006(7), Florida Administrative Code, provides: (7) Inmate visits with approved family members or friends should be encouraged for the positive purpose of maintaining home and community ties, which after release should provide a deterrent to recidivism. To the extent that it is safe and practicable to do so, such visiting should be allowed to take place in a relaxed atmosphere. Rule 33-5.006, Florida Administrative Code, also provides certain circumstances when a person may be excluded from an inmate's visitors list. For example, persons convicted of a felony may be excluded. Rule 33-5.006(5), Florida Administrative Code. Rule 33-5.007, Florida Administrative Code, is titled "Visitation Denial." Pursuant to this rule, it is provided that visitation may be denied under certain circumstances, i.e., if a visit would present a clear and present danger to the security and order of an institution. Rule 33-5.007, Florida Administrative Code, also provides: (3) No visit should be denied: . . . . (c) for any reason unrelated to the security, order or rehabilitative objectives of the institution. Rule 33-5.006(8), Florida Administrative Code, provides the following: (8) Inmates not married may be allowed to have one single non-immediate family member of the opposite sex on the visiting list, after approval. A married inmate may be allowed to have one single, non-family member of the opposite sex on the visiting list, after approval, if a pending divorce or separation of long duration can be verified and the spouse is removed from the list. [Emphasis added]. The Respondent interprets the portion of Rule 33-5.006(8), Florida Administrative Code, challenged in this proceeding and emphasized in finding of fact 15, to allow a single male inmate to have a single female visitor and, therefore, prohibits a single male inmate from receiving visitation from a married female visitor not related to the inmate. The Respondent's interpretation of Rule 33-5.006(8), Florida Administrative Code, as argued in its proposed final order, is intended "in part to deter potential problems involving visitors to the institution and to promote security of the institution and the inmates because of fights and conflicts which have occurred in the visiting park." See proposed finding of fact 7 of the Respondent's Proposed Final Order. The Respondent's interpretation of Rule 33-5.006(8), Florida Administrative Code, set out in finding of fact 17 is uniformly applied by the Respondent. The Respondent's interpretation of Rule 33-5.006(8), Florida Administrative Code, set out in finding of fact 17 has not been adopted as a rule pursuant to Section 120.54, Florida Statutes. Rule 33-3.005, Florida Administrative Code. The Petitioner presented no evidence during the formal hearing concerning Rule 33-3.005, Florida Administrative Code, other than the rule itself. The Petitioner has challenged Rule 33-3.005(2), (7) and (11), Florida Administrative Code. Rule 33-3.005(2), Florida Administrative Code, provides: (2) Legal mail shall be defined as: Mail to and from municipal, county, state and federal courts. Mail to and from state attorneys. Mail to and from private attorneys. Mail to and from public defenders. Rule 33-3.005(7), Florida Administrative Code, provides: (7) The institution shall furnish postage for mail to courts and attorneys and for pleadings to be served upon each of the parties to a lawsuit for those inmates who have no funds at the time the mail is submitted to the mailroom, but not to exceed payment for the original and two copies except when additional copies are legally required. The inmate shall be responsible for proving that copies in addition to the routine maximum are legally necessary. Rule 33-3.005(11), Florida Administrative Code, provides: (11) "Privileged mail" is a category that includes, mail to and from public officials, governmental agencies and the news media. Privileged mail may be opened only for inspection for contraband and only in the presence of the inmate. Such mail may not be read except for signature and letterhead. If necessary, it may be held for a reasonable time pending verification that it was sent by or is properly addressed to any attorney, a court, a public official, a governmental agency or a member of the news media. The weight of the evidence failed to prove that Rule 33-3.005(2), (7) or (11), Florida Administrative Code, is contrary to statutory law or that the rule is arbitrary and capricious. The weight of the evidence also failed to prove that Rule 33-3.005(2), (7) or (11), Florida Administrative Code, is vague, fails to establish standards or vests unbridled discretion in the Respondent. Rule 33-3.0051, Florida Administrative Code. The Petitioner presented no evidence during the formal hearing concerning Rule 33-3.0051, Florida Administrative Code, other than the rule itself. Rule 33-3.0051, Florida Administrative Code, governs the manner in which institutions of the Respondent are required to provide photographic copying services to inmates. Although the Petitioner has not designated which specific language in Rule 33-3.0051, Florida Administrative Code, he believes is invalid, the Petitioner has evidently challenged the requirement of Rule 33-3.0051(3), Florida Administrative Code, that "[i]nmates will be charged $0.15 per page for standard legal or letter size copies . . . " and the following portion of Rule 33-3.0051(4), Florida Administrative Code: (4) Copying services shall not be denied inmates unable to pay for copies. An inmate shall be considered unable to pay for copies when there are no funds in his inmate account at the time the copies are completed and the assessment of cost is determined. If an inmate requesting copies has any funds in his account, he shall be required to pay for copies furnished him at the rate of $0.15 per page until the costs reduce his account to zero. . . . The weight of the evidence failed to prove that Rule 33-3.0051, Florida Administrative Code, is contrary to statutory law or that the rule is arbitrary and capricious. The weight of the evidence also failed to prove that Rule 33-3.0051, Florida Administrative Code, is vague, fails to establish standards or vests unbridled discretion in the Respondent.
The Issue The issue in this case is whether Respondent violated the Florida Civil Rights Act of 1992 by committing unlawful employment practice (discrimination) on the basis of Petitioner's sex (female), National Origin (Hispanic), handicap when it terminated Petitioner from employment, or on the basis of sexual harassment.
Findings Of Fact As noted above in the Preliminary Statement, the parties have entered into an Agreement of Settlement and Mutual and General Release. Their agreement, in pertinent part, includes the following: "DM, on the one hand, and JBF (under the name Joe Blasco Cosmetics), on the other hand, are parties to proceeding which took place before the State of Florida Division of Administrative Hearings, in Case No. 01- 2328, on about June 28, 2001, with respect to DM's claims of discrimination against JBE (the"Action"). Each of the parties hereto considers it to be in its best interest, and to its advantage, forever to settle, adjust, and comprise all claims and defenses which have been, or could have been, asserted in connection with the employment relationship, the Action, and/or in an other action or proceeding arising out of any employment or other relationship between the parties hereto. The terms of this Agreement are contractual, not a mere recital, and this Agreement is the result of negotiation between the parties, each of whom has participated in the drafting hereof, through each of the parties' respective attorneys. Diana Morales shall dismiss with prejudice Case No. 01-2328 pending before the State of Florida, Division of Administrative Hearings. Diana Morales agrees to execute and file any and all documents necessary to dismiss her claim and advise any and all documents necessary to dismiss her claim and advise any investigative bodies, administrative bodies and/or courts that she has withdrawn, dismissed and resolved any and all claims with Joe Blasco Cosmetics, Joe Blasco Enterprises and/or Joe Blasco." The parties' stipulated settlement agreement constitutes an informal disposition of all issues in this proceeding.
